Miss Kalpana Sarkar vs Shri Akhil Datta
2022 Latest Caselaw 842 Tri

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                       HIGH COURT OF TRIPURA
                            AGARTALA
                        RSA NO.03 OF 2020

   1. Miss Kalpana Sarkar,
   D/o Late Upendra Kumar Sarkar.

   2. Sri Subrata Sarkar,
   S/o Late Upendra Sarkar.

   3. Smt. Alpana Sarkar,
   W/o Sri Uttam Basak.

   4. Sri Debabrata Sarkar,
   S/o Late Upendra Sarkar.

   All are resident of Madhya Badharghat, P.O.-A.D. Nagar,
   P.S. Amtali, West Tripura.

                                 .........Defendant-Appellant (s)

                      Vs.

   Shri Akhil Datta,
   S/o Late Amulya Bhusan Datta,
   Resident of Bimanghati,
   South Manik Bhandar,
   P.S. Kamalpur, District Dhalai.

                                              ........ Respondent(s)

For the Appellant(s) : Mr. G.S. Bhattacharjee, Advocate

For the Respondent(s) : Mr. Samarjit Bhattacharjee, Advocate.

Mr. B. Saha, Advocate.

Date of hearing             : 06.09.2022

Date of delivery of
Judgment & Order            : 09/09/2022.



Whether fit for reporting : NO.


        HON'BLE MR. JUSTICE T. AMARNATH GOUD

                     JUDGMENT AND ORDER

This present appeal is filed against the Judgment and

Decree dated, 10.04.2019, passed by the learned Addl. District

Judge, West Tripura, Agartala, in T.A. 09 of 2018 arising out of

the Judgment and Decree dated 22.02.2018 passed by the

learned Civil Judge, Senior Division, Court No.1, Agartala, West

Tripura in T.S.53 of 2015.

2. The facts of the case, in brief, are that

respondent as plaintiff filed a title suit claiming the right title

and interest on the suit land and for recovery of possession in

respect of the suit land against the defendant-appellant for

land measuring 6 gandas comprised in khatian No. 5951 of

old CS Plot No. 7098(p), Hal CS plot No. 25610 under Mouja-

Badharghat, sheet No. 5, Tehsil- Badharghat. According to the

plaintiff-respondent, he is the owner of the suit land, and on

the basis of title deed No. 1-7109 dated 09.10.2007 executed

by the vendor-defendant, he took possession of the same. He

applied for the mutation but the same was not granted in his

favour. On 18.05.2008 when the respondent-plaintiff intended

to fix pillars on his land, at that time he was resisted by the

defendant-appellant, her sons and daughter, and other

persons. According to the Plaintiff-respondent, he was

dispossesed on 09.10.2008. In spite of his effort, he could not

enter into the suit land. Hence, the Plaintiff-respondent filed

that instant T.S. No.53 of 2015

3. The defendant-appellant therein contested the

suit by filing a written statement denying the assertions of the

plaintiff-respondent. Defendant-appellant therein further took

the plea that since she was unable to read and write, the

plaintiff-respondent by applying fraud took the thump

impression of her on the sale deed wherein she understood

that she would sell 2 gandas of land for a consideration of

Rs.2,40,000/-. Later when the plaintiff-respondent tried to

occupy suit land measuring 6 gandas, at that time, it came to

her knowledge that in place of 2 gandas collusively 6 gandas

was written. Further according to the defendant-appellant

therein she was/is in possession of the suit land. Furthermore,

the plaintiff-respondent did not make further payment as per

the sale deed. It was the plaintiff-respondent to prove the

sale. Further, the mandatory provision of Section 68 of the

Evidence Act was not complied with. The Learned Court below

decreed the suit in favour of the plaintiff-respondent vide

judgment and decree dated 22.02.2018.

4. Being aggrieved thereby, the defendant-

appellant therein preferred an appeal bearing No.T.A.01. of

2018 before the learned First Appellate Court. But the First

Appellate Court vide judgment and decree dated 10.04.2019

dismissed the said appeal.

5. Aggrieved thereby, the defendant-appellants

herein have filed this instant appeal under Section 100 read

with Or.XLII, Rule-1 of the Code of Civil Procedure, 1908.

6. Vide order dated 10.08.2020, the following

substantial questions of law were formulated:-

"1. Whether the findings of the learned Courts below are perverse?

2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?"

7. Heard Mr. G.S. Bhattacharjee, learned counsel

appearing for the appellants as well as Mr. S. Bhattacharjee,

learned counsel appearing for the respondent.

8. Mr. G.S. Bhattacharjee, learned counsel appearing for

the defendant-appellants submits that the sale deed cannot be

taken as proof and source of title when admittedly the

executrix(vendor) herself is unable to read and write the

Bengali script and denied the sale of the quantum of 06 gandas

of land. He further submits that the learned First Appellate

Court has failed to consider and appreciate the evidence on

record in passing the judgment impugned, when the deposition

of attesting witness is mandatory for proving the execution and

contention of the indenture, under dispute. Staying this,

learned counsel appearing for the appellants urged this Court

to allow this instant appeal.

9. Mr. S. Bhattacharjee, learned counsel appearing for

the plaintiff-respondent submitted that the learned Trial Court

and learned First Appellate Court has rightly delivered the

judgments and decree and urged this Court to dismiss this

instant appeal. Learned counsel further referred to the cross-

examination part of D.W.1 before the learned Trial Court which was

recorded by the Advocate Commissioner. In said cross-examination

the defendant-appellant herself specifically stated that "I have sold

the suit land in favour of the Plaintiff and handed over the same to

the plaintiff, now I am possessing the suit land.". Referring to the

said portion of cross-examination of the defendant-appellant, it is

submitted by learned counsel for the respondent that since there is a

clear admission by the defendant-appellant herself, so, there is no

scope to disbelieve her evidence regarding the transfer of land.

10. To substantiate his argument, he has pressed into

service Para- 17, 18, 29 & 23 the Hon'ble Apex Court Judgment

passed in Hero Vinoth(Minor) Vs. Seshammal reported in

(2006) 5 SCC 545 dated 08.05.2022 which is reproduced as

under:-

" 17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence.

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. There mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the fact appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and Others (1999(3) SCC 722)].

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See

:Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]."

11. He has also referred to Para-14 of the Hon'ble

Apex Court Judgment passed in Parminder Singh Vs.

Gurpreet Singh reported in (2018)13 SCC 352 dated

25.07.2017 which is reproduced here-in-under:-

" 14. In our considered opinion, the question as to whether specific performance of an agreement should be granted or not is essentially in the discretion of the Court. Indeed Section 20 of the Specific Relief Act says so in no uncertain terms. Therefore, once the Trial Court, first and second Appellate Court formed an opinion and decided to grant the specific performance of the agreement to the plaintiff in exercise of their respective discretionary powers, this Court being the last Court in hierarchy cannot disturb such concurrent findings while exercising power under Article 136 of the Constitution of India. As mentioned above, these findings are binding on this Court."

12. Heard learned counsel appearing for the parties and

perused the evidence on record.

13. Admittedly, the defendant-appellants are in

possession of the scheduled land and the defendants have

received a sum of Rs.80,000/- only. The plaintiff-respondent

has not made out the case to say that he is dispossesed

from the property. The plaintiff-respondent has not placed

anything on evidence to show that he has been delivered

peaceful and vacant possession of the scheduled land

property by the defendants. The plaintiff-respondent has also

not placed any evidence on record to show that the sale

consideration of Rs.2,40,000/- has been paid to the

defendants and the details as to on what dates the amount

has been paid. Even according to the evidence of Deed

writer, Sri Partha Paul i.e. P.W.4, in his cross-examination,

he has categorically stated that the value of the scheduled

property during 2007 is around 8(eight) to 9(nine) lakhs.

The vendor-defendant-Smt.Subarna Prava Sarkar was an

aged woman. She was bedridden and ill and could not visit

the Registration office. Accordingly, arrangements were

made to get the document registered by visiting the house of

the vendor-defendant. The said deed writer i.e. P.W.4 has

not stated that the recitals of the sale deed i.e. Exbt. No.1,

1(i) and 1(ii) have been read over to the vendor- defendant

and she had understood and then signed the sale deed.

These are the several issues during the course of argument,

this Court felt that they were not appreciated by the Courts

below. Now since this Court is dealing only with the second

appeal, the substantial questions of law which is framed are

again reproduced herein-under:-

""1. Whether the findings of the learned Courts below are perverse?

2. Whether the contents of the Sale Deed(Exbt-1) and the Sale Deed as a whole has been proved in accordance with law?"

14. In view of the above, the learned counsel

appearing for the defendant-appellants has not advanced the

argument for better appreciation of the present appeal. It is

needless to observe that in the second appeal, appreciation

of evidence that does not form part and parcel of the

arguments on substantial questions of law cannot be

considered.

15. With the above observation and direction, this

instant second appeal stands dismissed.

16. Consequently, pending application(s), if any,

also stands closed.

Send back the LCRs.

JUDGE

Suhanjit